Domestic Law The Principles
In a more recent example, the chairman and managing director of a small London merchant bank, WSTC, was convicted inter alia of obtaining property by deception. A repurchase agreement contract was entered into in relation to securities allegedly held in Canada, and payment was made by one New York bank into an account with WSTC's New York bank. It was argued on appeal that the moneys were obtained in New York, not England.
The Court of Appeal was unimpressed: the appellant and those to whom he made the representation were in London, it was in London the telephone call was made, all relevant documentation save for the crediting of the New York account came into existence in London, and it was in and from London that the appellant and WSTC conducted their business
Again the policy aspect of the court's reasoning was explicit:The reliance of international banking on advancing communications technology had added new weapons to the armoury of fraudsters, especially those whose Purpose it was to perpetrate fraud across national boundaries.... The court had Jo recognise the need to adapt its approach to the question of jurisdiction in the light of such changes.
As in so many areas of English law, an arid conceptualization gives way to pragmatism in practice. Legislation now gives effect to this pragmatic approach for certain offences in the Theft Acts of 1968 and 1978 and the Forgery and Counterfeiting Act 1981. Part I of the Criminal Justice Act 1993 requires only that one element of those offences be committed in England.
It need not be the last element of the offence.
Moreover, a conspiracy, or attempt to commit these offences abroad, can be proceeded against in England. An important factor behind these changes is the national interest in London remaining a major banking and financial centre. 'Should it be thought that large scale frauds could be carried out here with impunity, confidence in London as a major international centre would rapidly be undermined'. To this extent, English law is more in line with the approach in other common law jurisdictions.
This discussion of jurisdiction has concentrated on criminal and regulatory offences. It will be recalled, however, that the civil law in England now plays its part in pursuing the fraudulent and their ill-gotten proceeds. Thus a bank may be held accountable on the ground that it knowingly assisted a fiduciary in the commission of a fraud, or received money knowing that it had been paid in breach of fiduciary duty.
In this area the English view of jurisdiction is still hidebound. At least a substantial part of the acts, viewed as a whole, on the part of the fiduciary and the bank must take place within the jurisdiction if leave is to be given to serve outside the jurisdiction. It seems that jurisdiction will not be founded on the fact alone that the off-shore entity, used by the fraudulent fiduciary to receive the proceeds of fraud, has an English bank account into which the proceeds are paid.
The court reasoned that the relevant legislation contained express reference to offences against corresponding provisions in the corresponding laws in other signatory countries to the Single Convention on Narcotic Drugs 1961, and that the drafters had the international obligations of the United Kingdom under the convention in mind. .
